U.S. v Texas

On June 23, 2016 the U.S. Supreme Court issued its opinion in the closely-watched case of U.S. v. Texas. The Court's opinion totaled only nine words: "The judgment is affirmed by an equally divided court." The court's 4-4 ruling demonstrates the significance of the death of Justice Antonin Scalia and the Senate's inaction on confirming Merrick Garland, President Obama's nomination to Supreme Court.

U.S. v. Texas was the culmination of an injunction granted to the State of Texas (joined by seventeen other states in their lawsuit) over President Obama's proposed Executive Actions on Immigration, originally announced in November 2014. The President's Actions included the expansion of the existing program for Deferred Action on Childhood Arrivals ("DACA") and the addition of a new program for Deferred Action for Parents of Americans ("DAPA"). These programs sought to assist individuals brought to the U.S. as children who are without status in the U.S. and the parents of U.S. citizens and permanent residents who are without status. Under both programs, the eligible individuals would be permitted to remain in the U.S. and work without fear of deportation.

On February 16, 2015, a federal judge in Texas issued an injunction to prevent implementation of these two programs (expanded DACA and DAPA), a decision the Obama administration appealed. On November 9, 2015, in a 2 - 1 decision, the 5th Circuit Court of Appeals in New Orleans affirmed the District Court's decision, halting President Obama's expanded DACA and DAPA programs. The Obama administration appealed and in April 2016 argued its case before the U.S. Supreme Court. With its divided decision last month, the Supreme Court's decision leaves the 5th Circuit Court of Appeals' decision in place, effectively blocking the President's Executive Actions for now. U.S. v. Texas, like other equally divided Supreme Court decisions, does not set precedent and thus is not a binding decision on any future cases concerning Executive Authority or immigration.  A full copy of the Supreme Court's opinion, along with briefs filed with the Court, can be found on the court's website.

Determining whether a bona-fide employer-employee relationship exists under the new STEM OPT regulations

The Department of Homeland Security's new 24 month STEM OPT rule went into effect on May 10, 2016. Employers and F-1 students should be aware of the major changes to the STEM OPT program.  In particular, some employers may no longer be able to hire F-1 STEM OPT students. In response to public comments concerning whether self-employed students, temporary staffing agencies, and start-up companies (formed and staffed by the F-1 student) would qualify as "employers" under the new regulations, DHS stated: 

Response. There are several aspects of the STEM OPT extension that do not make it apt for certain types of arrangements, including multiple employer arrangements, sole proprietorships, employment through "temp" agencies, employment through consulting firm arrangements that provide labor for hire, and other relationships that do not constitute a bona fide employer-employee relationship. One concern arises from the difficulty individuals employed through such arrangements would face in complying with, among other things, the training plan requirements of this rule. Another concern is the potential for visa fraud arising from such arrangements. Furthermore, evaluating the merits of such arrangements would be difficult and create additional burdens for DSOs. Accordingly, DHS clarifies that students cannot qualify for STEM OPT extensions unless they will be bona fide employees of the employer signing the Training Plan, and the employer that signs the Training Plan must be the same entity that employs the student and provides the practical training experience. DHS recognizes that this outcome is a departure from SEVP's April 23, 2010 Policy Guidance (1004-03). (emphasis added)

A full copy of the new OPT STEM regulations is available on the Federal Register's website. If you have questions regarding whether your employer-employee relationship will qualify for the new 24-month STEM OPT extension, please contact an attorney at Iandoli Desai & Cronin P.C. at info@iandoli.com.

USCIS now accepting inquiries for extension of stay / change of employer petitions pending for more than 210 days

As many of our clients have noticed, a number of Form I-129 petitions requesting an extension of status or change of employer have been pending with USCIS for over 8 months (240 days). The majority of the Form I-129 petitions experiencing these delays affect H-1B employees. As a result of this backlog, employers and foreign nationals have needed to upgrade a large number of petitions to premium processing, at a cost of $1,225 per petition, in order to permit foreign nationals to travel abroad or receive their approval notice in a timely fashion. While USCIS has not provided an official explanation for these unprecedented delays, last month the agency publicized efforts to address the situation. On April 21, 2016, USCIS announced they were implementing a new system to permit employers or their attorneys of record to inquire about the status of certain Form I-129 petitions that have been pending for more than 210 days. 
 
Employers and attorneys can either submit a request online at  https://egov.uscis.gov/e-Request/Intro.do (select the option "case is outside normal processing time") or by calling the National Customer Service Center at 1-800-375-5283 (TDD for deaf and hard of hearing: 1-800-767-1833).  To check on a case status, one must be ready to provide the receipt number, filing date, and the foreign national employee's date of birth.   

USCIS proposes significant fee increases for nearly all applications & petitions

On May 4, 2016, USCIS published a proposed rule to increase filing fees an average of 21% across all application-types and add a few new fees to its existing fee schedule. The agency noted the current fees, set in 2010, are not sufficient to cover the full costs of the services USCIS provides. In hopes of providing better service, reducing wait times and increasing enforcement efforts, USCIS announced its proposed fee increases, which include the following changes for common applications:

• Form I-129 (H-1B, L-1, O-1, TN, E) would increase from $325 to $460 (42%)
• Form I-140 Immigrant Petition for Alien Worker would increase from $580 to $700 (21%)
• Form I-485 Application to Adjust Status for adults would increase from $1,070 to $1,225 (16%)
• Form I-130 Petition for Alien Relative would increase from $420 to $535 (27%)
• Form N-400 Application for Naturalization would increase from $680 to $725 (8%)

The proposed rule in its entirety can be viewed on the Federal Register website. Comments are due by July 5, 2016 and can be submitted via the Federal eRulemaking Portal at http://www.regulations.gov.  All submissions should include the DHS Docket No. USCIS-2016-0001. 

New requirement for Lawful Permanent Residents traveling to Canada

Effective March 15, 2016, the Canadian Border Service Agency ("CBSA") is now requiring all U.S. lawful permanent residents ("LPRs") who are visa exempt for Canada to sign-up for Electronic Travel Authorization ("eTA") prior to any travel to or through Canada by plane. LPRs travelling via land or sea, U.S. citizens, and foreign nationals with a valid Canadian visa are not subject to this new requirement. CBSA is allowing LPRs travelling by plane between March 15, 2016 and September 29, 2016 without eTA to board flights as long as they have appropriate travel documents, such as a valid passport, and meet all requirements to enter Canada.  After that LPRs must sign up for eTA prior to any travel.
 
To apply for eTA please visit: http://www.cic.gc.ca/english/visit/eta.asp. According to CBSA, the application process costs $7 CAD and most are approved within minutes of applying.

First-time tourist visa appointments suspended & other significant delays at the U.S. Embassy in Caracas, Venezuela

For the past several months, the Venezuelan Foreign Ministry has refused to issue visas for U.S. Embassy personnel, resulting in a severe staff shortage at the U.S. Embassy in Caracas. On May 18, 2016, the U.S. Department of State ("DOS") announced that due to limited staff, the U.S. Embassy in Caracas is forced to cease making appointments for certain visas and significantly limit the processing of others.

Until further notice, the Embassy in Caracas is no longer scheduling appointments for first-time business or tourist (B-1/B-2) visa applicants. For those who already paid the visa application fee prior to May 18, 2016, the Consulate will honor those paid fees for up to one year but will only be scheduling a limited number of appointments each day. Applicants should be prepared for the application process to take longer than expected. In addition, applicants applying for renewal of their U.S. visa or first-time applicants for any of the petition-based, student, or investor visas, a limited number of appointments for those visa types will be made available but wait times may be significant.

For immigrant-based visa applications, the Embassy has confirmed it will continue to schedule appointments as usual once the National Visa Center ("NVC") has notified them that cases are ready for an interview. For more information please visit:  http://caracas.usembassy.gov/news¬events/embassy¬news/new¬information¬niv¬visa-venezuela.html.  

USCIS announces TPS extended for Nicaragua and Honduras

USCIS recently announced Temporary Protected Status ("TPS") for Nicaragua will be extended for an additional 18 months, effective July 6, 2016, through January 5, 2018. Current beneficiaries who wish to extend their TPS must re-register during the 60-day period that is open now through July 15, 2016. USCIS will automatically extend current TPS Nicaragua employment authorization documents (EADs) with a July 5, 2016 expiration date for six months. For more information please visit: https://www.uscis.gov/news/news-releases/temporary-protected-status-extended-nicaragua.
 
In addition, USCIS announced TPS for Honduras will also be extended for an additional 18 months, effective July 6, 2016, through January 5, 2018. Current beneficiaries from Honduras seeking to extend their TPS must re-register during the 60-day period that is open now through July 15, 2016. USCIS will automatically extend current TPS Honduras employment authorization documents (EADs) with a July 5, 2016 expiration date for six months. For additional details, please visit: https://www.uscis.gov/news/news-releases/temporary-protected-status-extended-honduras.

USCIS announces H-1B cap reached for 4th year in a row during the first week of April

U.S. Citizenship and Immigration Services ("USCIS") announced on April 7, 2016 that it had reached the congressionally mandated H-1B cap for fiscal year 2017 ("FY2017").  A few days later, USCIS disclosed the total number of H-1B petitions the agency received for FY2017: 236,000.  As a result, USCIS employed a lottery system to select the 65,000 H-1B visas in the general category cap and the additional 20,000 H-1B visas available to applicants with a U.S. master's degree or other advanced degree obtained in the U.S. 

The number of applications submitted by employers seeking to hire professionals under the H-1B program has increased since 2013 and the lottery process has become commonplace. USCIS confirmed it received 124,000 applicants in FY2014, 172,500 in FY2015, 233,000 in FY2016, and now 236,000 in FY2017. 

For petitions filed via premium processing that were selected in the lottery, USCIS announced it will begin the guaranteed 15-day processing time for those petitions on May 12, 2016. On May 2, 2016, USCIS confirmed it had completed data entry for all FY2017 H-1B cap-subject petitions selected in the lottery. The agency will now begin the process of returning filing fee checks and the petitions not selected in the lottery, typically mailing those packages back to employers beginning in late May or early June. 

Not selected in the H-1B lottery? Other work visas for professionals to consider

Employers and foreign nationals disappointed in this year's H-1B lottery results may want to consider other work visa options.  A few possibilities that are not subject to annual quotas include:

• Cap-exempt H-1B visas - available where the beneficiary will be employed at an institution of higher education (even in some cases with a private company who maintains space on a college or university campus), a related or affiliated nonprofit entity, a nonprofit research organization, or a government research organization, or concurrently employed by both a cap-exempt employer and a private, otherwise cap-subject employer;
• TN visas - available to nationals of Canada and Mexico;
• E-3 visas - available to nationals of Australia;
• H-1B1 visas - available for nationals of Chile and Singapore (subject to a quota but that quota is rarely met);
• E visas - E-1 treaty trader and E-2 treaty investor visas are available for nationals of a number of countries (full list here);
• F-1 student visas - F-1 students with a degree in a STEM field may be eligible under the new STEM OPT rules that permit work authorization for up to 3 years following graduation;
• J-1 visas - available for interns or trainees in a variety of work categories if sponsored by a qualified J-1 entity, including umbrella sponsorship agencies;
• L-1 visas - available to managers, executives or those with specialized knowledge who have worked abroad for at least 1 year within the past 3 years for a company abroad related as a parent, branch, subsidiary, or affiliate of a U.S. company;
• O-1 visas - available for persons of extraordinary ability in the sciences, arts, education, business or athletics.

Please contact the attorneys at Iandoli Desai & Cronin at info@iandoli.com to discuss these and other options for your professional employees.

Department of State announces new policy of visa revocation for DUI arrests

In a recent Q&A session, the Department of State's Visa Office discussed its new policy requiring consular officers to prudentially revoke nonimmigrant visas for driving under the influence ("DUI") arrests subsequent to visa issuance. The arrest alone is sufficient for DOS to prudentially revoke a visa based on suspected ineligibility - a conviction or admission is not required.  Although consular officers generally may revoke a visa only if the alien is ineligible under INA 212(a) (including for conviction of certain crimes, controlled substance violations, etc.) or is no longer entitled to the visa classification, the Department of State ("DOS") may revoke a visa if an ineligibility or lack of entitlement is suspected, or for virtually any other reason. This is known as a prudential revocation.  

Effective November 5, 2015, DOS implemented the requirement for consular officers to prudentially revoke nonimmigrant visas after a DUI arrest because the agency considers such an arrest as indicative of a possible ineligibility under the Immigration and Nationality Act ("INA"): ineligibility for a visa due to a possible physical or mental disorder associated with harmful behavior. Previously, a nonimmigrant's DUI arrest subsequent to being issued a visa did not pose an issue for a foreign national until the next time she or he sought to apply for a visa and would have to disclose the arrest on the visa application. 

DOS and its affiliated visa offices receive information on arrests and convictions through a number of U.S. government agencies' electronic databases, some of which do not include final dispositions of criminal charges after arrest. Following a DUI arrest, a foreign national in the U.S. on a nonimmigrant visa may receive a notice from a consulate stating his/her visa has been revoked due to derogatory information received by DOS and that the visa is not valid for future travel to the U.S. Although affected visa holders are not required to immediately depart the U.S., they are required to present the visa at the consulate for physical cancellation upon returning abroad. Revocation does not preclude a foreign national from reapplying for a new visa, but the DUI arrest would have to be disclosed on any future visa application.

This is a major change in policy and has the potential to affect a significant number of visa holders currently living and working in the U.S. who have been arrested for a DUI within the past five years and who have not yet had opportunity to disclose that information on a visa application. For more information on DOS's new policy and to view the updated Foreign Affairs Manual ("FAM") that includes the DUI arrest provision visit the FAM online.